Date: 19981230
Docket: T-163-98
BETWEEN:
GARETH GOSTLOW
Applicant
- and -
CANADIAN ARMED FORCES and
THE ATTORNEY-GENERAL OF CANADA
Respondents
REASONS FOR ORDER
LUTFY J.:
[1] In 1990 and 1991, the applicant, then a Lieutenant-Commander in the Canadian Forces, applied for subsidized legal training through the Military Legal Training Plan ("MLTP"). He was unsuccessful in both competitions. In each year, only one MLTP position was available. The successful candidates were 28 and 29 years of age respectively. In 1990, the applicant was 40.
[2] The relevant provisions of the Canadian Forces Administrative Order 9-62, which deals with military training plans, stipulate:
| 5. To be eligible for selection for a training plan, an applicant must: |
...
b. not normally be above the rank of captain;
...
| 12. ... Officers above the rank of captain who are accepted for training must voluntarily revert to the rank of captain before training begins. |
[3] In the applicant"s view, the policy statement that MLTP candidates "must normally not be above the rank of captain" tended to promote discrimination against older and most senior officers. In his opinion, this criteria is redundant in light of the requirement that a successful candidate must voluntarily revert to the rank of captain.
[4] In May 1996, after exhausting the departmental grievance procedure without obtaining redress, the applicant filed two complaints with the Canadian Human Rights Commission. He claimed that: (a) he was denied legal training on the basis of his age, which constitutes a discriminatory practice within the meaning of section 7 of the Canadian Human Rights Act;1 and (b) the application process for the MLTP violates section 10 of the Act by tending to deprive individuals of a certain age of an employment opportunity to gain legal training. In asserting both complaints, the applicant linked the increasing average age of officers in comparison with the promotion in rank:
| Rank Average Age |
| Colonel 47.8 |
| Lieutenant-Colonel 45.0 |
| Major 40.8 |
| Captain 33.6 |
The applicant"s rank of Lieutenant-Commander is the naval equivalent to Major.
[5] The Commission appointed an investigator who recommended that the complaints be dismissed as unfounded. A copy of the investigator"s report was provided to the applicant who submitted written comments to the Commission. After reviewing the applicant"s submissions, the Commission concluded that an inquiry by the Canadian Human Rights Tribunal was not warranted. Accordingly, it exercised its broad discretion pursuant to subparagraph 44(3)(b )(i) of the Canadian Human Rights Act2 and dismissed the complaints in December 1997. In particular, the Commission decided that:
| Pursuant to s. 44(3)(b)(i) of the Canadian Human Rights Act, the Commission has resolved to dismiss the complaints because: |
the evidence does not support the allegations;
| the respondent"s policy of limiting applications for the Military Legal Training Plan to officers of the rank of Captain is consistent with the operational requirements of the respondent"s organization; |
| the respondent"s conditions of obligatory service attached to the provision of legal training, in combination with its policy of compulsory retirement, would not appear to preclude legal training for an officer able to serve at least 5 years before he or she reaches compulsory retirement age; |
| the complainant has not rebutted the respondent"s defence that in the 1990 selection process for the Military Legal Training Plan younger members scored lower than he did, and a Major close to his age scored several positions higher; |
| the ages and scores of applicants do not indicate that age was a consideration in the 1991 selection process. |
[6] The applicant now seeks judicial review of this decision on the grounds that the Commission: (a) applied the wrong test in determining that the evidence did not support his complaint; and (b) erred in finding that the respondent had established a bona fides occupational requirement (BFOR), pursuant to subsection 15(a) of the Canadian Human Rights Act.3
[7] Between 1975 and 1991, only fourteen of 101 applicants for MLTP were above the rank of captain. During the same period, only one officer at a rank higher than captain was selected for MLTP, while the other twenty-three successful candidates were at the rank of captain or below. The applicant submits that these statistics, in combination with the correlation between an increase in rank and in age, show that the policy that applicants "must not normally be above the rank of captain" constitutes a prima facie case of discrimination.
[8] The applicant further submits that in light of the decisions in Holden v. Canadian National Railway,4 Canada (Attorney General) v. Martin et al.5 and Canadian Human Rights Commission v. Canada,6 once he established a prima facie case of discrimination, the burden shifts to the respondent to prove that the discriminatory policy is a bona fides occupational requirement.7 Each of these three cases was in judicial review of a decision of a Human Rights Tribunal. It may be fully appropriate for the Commission and its investigators to canvas the range of issues that a Tribunal would examine. However, I do not accept that the same evidentiary structure imposed on a Human Rights Tribunal must be followed by the Commission in making its decision under subsection 44(3) of the Act.8
[9] The Commission has been described as "an administrative and screening body, with no appreciable and adjudicative role".9 The decision of the Commission to dismiss the complaint "... is not intended ... [to] be a determination where the evidence is weighed as in a judicial proceeding ...".10 The Commission decides, among the various options available to it, whether or not the information concerning the alleged discrimination warrants further inquiry by a Human Rights Tribunal.
[10] In Slattery v. Canada (Human Rights Commission),11 my colleague Justice Nadon described the role of this Court in reviewing decisions of the Canadian Human Rights Commission, which dismiss complaints, pursuant to paragraph 44(3)(b). In his words:
| Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. (at p. 600) |
| ... |
| In the absence of guiding regulations, the investigator, much like the CHRC, must be master of his own procedure, and judicial review of an allegedly deficient investigation should only be warranted where the investigation is clearly deficient. (at p. 605) |
...
| ... deference must prevail over interventionism in so far as the CHRC deals with matters of fact-finding and adjudication, particularly with respect to matters over which the CHRC has been vested with such wide discretion, as in the case of the decision whether or not to dismiss a complaint pursuant to subsection 44(3). (at p. 609) [Emphasis added.] |
[11] In summary, it is inappropriate to impose the evidentiary and procedural rules concerning a complaint before a Human Rights Tribunal on the administrative, screening function of the Commission, even where it dismisses a complaint as being not warranted. To do so could restrict the ability of the Commission and its investigators to consider fully individual complaints. It is not because the investigator looks to the government institution or any other respondent for its response to the complaint, that the Commission"s decision is subject to the same degree of scrutiny as that of a Human Rights Tribunal.
[12] This proceeding concerns an allegation of adverse effect discrimination as opposed to a complaint of direct discrimination.12 Where adverse effect discrimination is alleged, it may be more difficult for the applicant to establish a prima facie case of discrimination because the policy complained of is often neutral on its face. The discrimination may become apparent only upon further examination of the individual"s circumstances.
[13] In this case, the Commission decided that further inquiry by a Human Rights Tribunal was not warranted. It concluded that the evidence did not support the allegations of discrimination asserted by the applicant. It also found that the MLTP selection policy did not preclude legal training for an officer able to complete five years of obligatory service before reaching compulsory retirement. The Commission further noted that "the ages and scores of applicants do not indicate that age was a consideration in the 1991 selection process". Finally, counsel for the respondent asserted, properly in my view, that the policy of more senior selectees reverting to the rank of captain ran counter to the allegation that MLTP candidates were discriminated against on the basis of age.
[14] In this application for judicial review, there is no ground to interfere with the findings of the Commission. The applicant does not claim that he was denied procedural justice, nor does he point to any unreasonable omissions in the record before the Commission. Where the decision of the Commission meets the requirements of procedural fairness, does not omit "obviously crucial evidence" and is not "clearly deficient", effect should be given to its "wide discretion" and judicial intervention is inappropriate.13
[15] The investigator"s BFOR analysis, adopted by the Commission, concluded that the respondent"s position "appears to be reasonable, and it is not rebutted by the complainant". The applicant argues that the investigator applied the wrong test and confused "applicants" with "selectees" in his analysis. Even if the investigator"s approach may have been expressed in terms inconsistent with the principles set out in Etobicoke and O"Malley, 14 the issue is academic because of his finding, which was endorsed by the Commission, that the applicant"s underlying complaints of adverse effect discrimination were not made out.
[16] For these reasons, this application for judicial review will be dismissed.
____________________
Judge
Ottawa, Ontario
December 30, 1998
__________________2 Ibid. Subparagraph 44(3)(b)(i) of the Act stipulates:
| (3) On receipt of a report referred to in subsection (1), the Commission...(b) shall dismiss the complaint to which the report relates if it is satisfied(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or ... [Emphasis added.] | (3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission :...b) rejette la plainte, si elle est convaincue : (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié, ... |
3 Ibid. Subsection 15(a) states:
| It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; ... |
Ne constituent pas des actes discriminatoires : a) les refus, exclusions, expulsions, suspensions, restrictions, conditions ou préférences de l'employeur qui démontre qu'ils découlent d'exigences professionnelles justifiées; ... |
4 (1990), 112 N.R. 395 (F.C.A.).
7 See Ontario Human Rights Commission et al. v. Etobicoke, [1982] 1 S.C.R. 202 and Ontario Human Rights Commission and O"Malley v. Simpsons-Sears, [1983] 2 S.C.R. 536.
8 In Schut v. Attorney General of Canada and The Canadian Human Rights Commission (1996), 120 F.T.R. 60, Wetston J. set aside the Commission"s dismissal of a complaint because he felt that there was insufficient evidence to establish the existence of a reasonable and justified bona fides occupational requirement. However, in that case, he was dealing with a situation of direct discrimination and, in my view, his analysis does not apply to the circumstances of this proceeding.
9 Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at 893.
10 Syndicat des employés de production du Québec et de L"Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 at 899.
11 [1994] 2 F.C. 574 (T.D.), affirmed (1996), 205 N.R. 383 (F.C.A.).
12 The distinction between direct discrimination and adverse effect discrimination is set out in O"Malley, supra note 7 at 551:
Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. ... On the other hand, there is a concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties or restrictive conditions not imposed on other members of the work force.